The content of the necessity test

The next component of proportionality is the necessity test (Erforderlichkeit). It is also referred to as the requirement of “the less restrictive means.” According to this test, the legislator has to choose – of all those means that may advance the purpose of the limiting law – that which would least limit the human right in question. This test was discussed in the United Mizrahi Bank case:

This test of proportionality is based on the premise that the use of the law’s means – or the need to use such means – is required only if the purpose cannot be achieved through the use of other (hypothetical) legislative means that would equally satisfy the rational connection test and the level of their limitation of the right in question be lower. The necessity for the means determined by law stems therefore from the fact that no other hypothetical alternative exists that would be less harmful to the right in question while equally advancing the law’s purpose. If a less limiting alternative exists, able to fulfill the law’s purpose, then there is no need for the law. If a different law will fulfill the goal with less or no limitation of the human rights, then the legislator should choose this law. The limiting law should not limit the constitutional right beyond what is required to advance the proper purpose. Consider the following examples:

1. In Israel, a recent statute – the Civil Torts Law (Liability of the State) 2005 – establishes, inter alia, that the State of Israel is not liable in torts for any damage caused by its security forces operating in conflict areas. This provision was meant to exclude the damages incurred during combat operations from the scope of regular tort law. The Supreme Court has held that the statute limits the constitutional right to which Basic Law: Human Dignity and Freedom applies, beyond what is necessary. This is because it exempts from any liability in tort for damage incurred in a conflict zone, even for those damages not caused by combat activities. The Court recognized that the purpose of the law is proper, and that a rational connection exists between that purpose and the limiting statute; still, the necessity test could not be satisfied. The Court held that, in order to realize the statute’s purpose, the legislator could have opted for a less limiting limitation of the constitutional right so as to provide the state with an exemption from tort liability for combat activities. The measure adopted by the legislator limits the constitutional right beyond what is necessary, as it exempts the state from any damage incurred in a conflict zone, including that caused by non-combat activities.

2. In Israel, a statutory provision included in the Regulation of Investment Advice, Investment Marketing and Investment Portfolio Management Law, 1995, required a license to manage investment portfolios. The requirement was applied retroactively to anyone who managed investment portfolios prior to the enactment of the statute. The license requirement included a mandatory test, applicable to anyone who had managed investment portfolios for less than seven years prior to the statute’s coming into force. The Supreme Court held that this statute limited the constitutionally protected right of freedom of occupation of the veteran portfolio managers and that the limitation was for a proper purpose and satisfied the rational connection test. Still, the transitional provisions regarding the mandatory test for veteran managers failed to pass the necessity test. The Court ruled that the law’s purpose could have been fulfilled while limiting the veteran portfolio managers’ right to a much lesser extent, while taking into account their accumulated experience.

3. In the Makwanyane case, the South African Constitutional Court examined the constitutionality of a statute recognizing the death penalty. The Court held the statute to be unconstitutional since it was disproportional. The Court held, inter alia, that the state failed to lift its burden in proving that the statute’s purposes could not be achieved through a life sentence, which limits the constitutional right to life to a lesser extent.

4. In South Africa, in the Manamela case, the Constitutional Court examined a statute establishing a reverse onus in cases relating to the acquisition of stolen goods. In particular, the statute provided that anyone accused of acquiring stolen goods should bear the burden of proving that the goods were not stolen. The Court held that the purpose of the law – the protection of the community from dealing with stolen goods – was proper. Regarding the means used, it was ruled that the necessity test was not fulfilled as its purposes could have been achieved through a less limiting measure, such as limiting the scope to a particular category of high-value property.

5. In Germany, food regulations prohibited the sale of certain candies that contained cocoa powder which were primarily made out of rice. Those regulations limited the constitutionally protected right of freedom of occupation of several candy manufacturers. The purpose of the regulation was to protect consumers from a mistaken purchase. The Constitutional Court held that the purpose was proper, and that a rational connection existed between that purpose and the limiting law. Still, the Court held that the means chosen by the legislator were disproportionate in that they were not necessary. The same purpose could have been achieved through a warning label on the product; a complete prohibition of its sale was therefore unnecessary. The alternative means – proper labeling – is equal in efficiency to the means chosen by the legislator in achieving the proper purpose, but the harm that such a measure would cause to the constitutional right would be of a much lesser extent.